The US Appeals Court for the DC Circuit declared today that the FCC has the authority to reclassify broadband as a telecommunications service, thus giving the Commission the right to enact the Open Internet Order passed in February 2015.
The long-awaited ruling follows an earlier court decision in which the DC Circuit decided that the Federal Communications Commission (FCC) could not initially impose anti-blocking and anti-discrimination traffic management provisions against Verizon Communications Inc. (NYSE: VZ). At that time, the court said that the FCC would be able to enact open Internet rules if the classification of broadband were changed from that of an information service to that of a telecommunications service. The FCC subsequently reclassified broadband providers as common carriers under Title II of the Communications Act, making them eligible for net neutrality regulation. (See Net Neutrality Heads to Court.)
Today's opinion for the court was filed by Judges David Tatel and Sri Srinivasan, with Judge Stephen Williams concurring in part and dissenting in part. The decision is likely headed next to the Supreme Court, which is currently down to eight members -- four judges who are traditionally liberal and could be expected to vote with the DC Circuit, and four judges who are traditionally conservative and could be expected to vote against the DC Circuit. In the event of a deadlock at the Supreme Court, the DC Circuit Court decision would stand.
Reactions to the ruling are already pouring in.
"We are reviewing today's split decision by the DC circuit panel, and will carefully review the majority and dissenting opinions before determining next steps. Though disappointed in today's result, we are particularly gratified by Judge Williams' recognition of the ‘watery thin and self-contradictory' nature of the FCC arguments used to justify the imposition of common carriage laws on Internet networks. While this is unlikely the last step in this decade-long debate over Internet regulation, we urge bipartisan leaders in Congress to renew their efforts to craft meaningful legislation that can end ongoing uncertainty, promote network investment, and protect consumers."
"Two judges on the court have unfortunately failed to recognize the significant legal failings of the Federal Communications Commission's decision to regulate the internet as a public utility, leaving in place regulation we believe will replace a consumer-driven internet with a government-run internet, threatening investment and innovation in years to come. Our industry strongly supports open internet principles and the FCC's order is wholly unnecessary to keeping the internet open. We will continue to work toward policies that facilitate America's broadband leadership, are reviewing the court's decision, and will be evaluating all of our legal options."
From Free Press :
"Today's ruling is a great victory for the millions and millions of internet users who have fought for years for Net Neutrality. They have fought to ensure that the FCC has the power to protect everyone's right to connect and communicate online. The court upheld the agency's clear authority to prevent internet service providers from unfairly interfering with our communications. It confirmed that this authority stands on bedrock communications law and recognized the vital role that the open internet plays in our society."
From AT&T Inc. (NYSE: T):
"We have always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal."
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— Mari Silbey, Senior Editor, Cable/Video, Light Reading